Kucinich Right, Greenwald Wrong

Kucinich Right, Greenwald Wrong
By David Swanson

On Democracy Now! on Tuesday, Congressman Dennis Kucinich said he was working on a Constitutional Amendment to address both “Citizen’s United” and “Buckley v. Valejo,” meaning the Supreme Court decisions giving corporations outrageous and destructive powers of “free speech” and defining the spending of money as “speech.”

Glenn Greenwald replied to the Congressman that the First Amendment forbids making laws about free speech, even to limit free speech to human beings. But Kucinich, and so many others, including the campaigns at http://freespeechforpeople.org and http://movetoamend.org , are not proposing to pass laws. They are proposing to amend the Constitution. Greenwald can prefer the current Constitution with corporations holding almost limitless “rights” to buy off elected officials. But he cannot argue that the new Constitution, following an amendment process, would be unconstitutional.

Greenwald has claimed that the rule of law is of a higher value than what the consequences of that law may be:

“Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant.”

But amending the Constitution is not discarding the rule of law. Certainly, I believe that the intention of the founders and the precedents of the Supreme Court make Citizens United a radical reversal. But nobody has proposed violating the new “interpretation” of the First Amendment. Many have proposed amending it.

Imagine that you have a law, such as “Thou Shalt Not Kill,” and your judges interpret it to mean “Thou Shalt Not Kill except in war or as punishment for a crime or when enough money can be made by doing so.” Some of us would want to amend the law to restore it to what we thought of as a better “interpretation.” And we would probably not appreciate being called supporters of murder for daring to suggest that the Commandment could be amended. In our view it would have already been amended without having gone through the proper amendment process.

The First Amendment has effectively been amended to read “Congress shall make no law … abridging the freedom of speech or the freedom of corporations to bribe elected officials and manipulate the minds of the public.” That needs to be undone. But whether it was, in fact, done or simply always existed does not bear on the question of rule of law. Whether we are proposing to restore an original meaning or create a brand new one, what we are proposing is to amend the Constitution and — in contrast to current national policy on most of the Bill of Rights — actually comply with the letter of the law both before and after improving it.

Two paragraphs later, Greenwald turns to the question of outcomes, which he had previously dismissed, and writes:

“I’m also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don’t see how things can get much worse in that regard.”

Can’t get worse? Corporations want Social Security gone. If they get a bit more influence it will be gone. They just got a boatload of more influence. This shouldn’t be hard to see. They want us required to buy their health insurance products and who knows what else. Do we have to wait until we’re compelled to buy Fox News subscriptions before we can imagine such a thing?

Greenwald supports public financing as an alternative solution (as do we all), but corporations will always render optional public financing impotent unless we limit private financing. And Greenwald concludes his first blog on this topic with this absurdity:

“There are few features that are still extremely healthy and vibrant in the American political system; the First Amendment is one of them.”

Ignoring the theocratic trends in our government (remind me to post an unintroduced article of impeachment on that one) and the deficiency of press freedom in our country, are free speech zones and the privatization and militarization of public space now healthy signs for freedom of speech? We need to strengthen the First Amendment in many ways, just as we need to weaken it, if that’s what restricting it to human beings amounts to. The people who wrote the thing would be shocked at the silly reverence with which we treat our momentary notions of what the First Amendment is or is not, and at how reluctant we are to amend it.

Greenwald and other defenders of corporate spending as speech argue in terms of the rights of good non-profit groups and labor unions, but such groups are and will be monstrously outspent by corporations. So they are not gaining effective rights in this bargain. If these entities are really “collections of people” and that’s what gives them personal rights, then why wasn’t it good enough to have ways of funding election spending (through PACs) that involved the people? Why the need to allow corporations or unions to ignore their members?

Greenwald also defends allowing Lockheed Martin to buy elections on the grounds that we allow GE to do so as a media outlet. But NBC gets its funding from the ad buys made by the other corporations, and — to a lesser extent — from the ad buys made by good progressive groups and the candidates they fund. I’d love to see that money channeled into creating other media outlets. I’d also love to see serious investment in independent public media and community media, and free air time for candidates. Lots of reforms are needed, but our media being dominated by international mega-corporations ought not to serve as an excuse for our elections to be put up for sale in the same way. I can’t imagine why the one thing must follow from the other. Greenwald argues elsewhere that anyone who believes money is not speech,

“would have to say that there’s no First Amendment problem with any law that restricts the spending of money for political purposes, such as: ‘It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent’; or ‘It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent’; or ‘It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent.’ Anyone who actually believes that “money is not speech” would have to believe that such laws are necessarily permitted by the First Amendment (since they merely restrict the expenditure of money, which is not speech).”

But no one argues that money and speech don’t overlap and interact. The problem is that they are not identical, and are in fact different in a very fundamental way. Everybody has roughly the same power to speak, until barriers are erected and advantages claimed (and work is needed there). But a very small group of people has most of the money. We pass laws, other than the Constitution, for a reason. They serve useful purposes. And laws can quite coherently, constitutionally, and beneficially bar corporations from eliminating all impact of real persons in elections without banning new political parties or forbidding certain political views. The point of arguing that money is not speech is that not all spending of money must be free of restriction. (Indeed, for some of us, the same goes for some other forms of speech as well.) That is different from claiming that all spending of money must be subject to severe restriction. Nobody has argued that, and logic cannot compel them to. Similarly, Greenwald argues:

“[A]nyone who claims that since corporations are not persons, they have no rights under the Constitution [should answer]: Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants, and seize whatever they want? Do they have the right to do that to the offices of labor unions? How about your local business on the corner which is incorporated? The only thing stopping them from doing this is the Fourth Amendment. If you believe that corporations have no constitutional rights because they’re not persons, what possible objections could you voice if Congress empowered the FBI to do these things? Can they seize the property (the buildings and cars and bank accounts) of those entities without due process or just compensation? If you believe that corporations have no Constitutional rights, what possible constitutional objections could you have to such laws and actions? Could Congress pass a law tomorrow providing that any corporation – including non-profit advocacy groups — which criticize American wars shall be fined $100,000 for each criticism? What possible constitutional objection could you have to that?”

But I haven’t seen anyone argue that corporations should have no rights, although many specific corporations should lose their charters, many should have their monopolies busted, and many should be criminally investigated. The argument is that they should have the rights that states choose to give them when creating them. Those might overlap with our personal rights in the Constitution, but they need not be identical. For example, they need not contain the same right to freedom of speech. And it is that right that this amendment would deny them.